Appellant v Public Service Commission

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/201/25
ZIMBABWE HARARE 6TH MAY, 2024
CASE NO LC/H/87/24
AND
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For Appellant – Mr. A. Kadungure(Legal Practitioner)

For Respondent – Ms Y. T. Chikuni Civil Division of the Attorney General’s Office

CHIVIZHE J:

This is an appeal filed in terms of section 50(1)(c) of the Public Service Regulations, 2000, Statutory Instrument 1 of 2000 as read with Rule 19 of the Labour Court Rules, 2017. The appeal is filed as against the determination as well as the penalty imposed by the Disciplinary Authority on the 4th January 2024. The appeal is opposed. In relief, the appellant prays for an order in the following terms;

“Wherefore the appellant prays for the setting aside of the Disciplinary Authority’s decision and substituted with the following;

a)	The appellant is found not guilty and reinstated to his position as Headmaster without loss of pay, benefits and entitlements.”

BACKGROUND FACTS

The Appellant was employed by the Respondent as a Headmaster at St Mathias Tsonzo High School. He was charged with an act of misconduct i.e. breach of paragraph 3 of the First Schedule (section 2) of the above referred regulations. The allegations were that on the 5th

December 2021, the Appellant had and in clear breach of Circular P35, failed to appoint a disciplinary committee to handle Livingston Sunhwa’s case, a form four pupil at St Mathias Tsonzo High School who had allegedly stolen goods from the school tuck shop. The break in was first noted by the tuck shop attendant who reported the matter to the security guards. The security trailed a shoe print from the tuck shop to the Form 4 dormitory and later

reported their findings to the headmaster.

The Appellant reported the burglary to the police to investigate before he conducted an internal investigation. During the investigation by the police officers, the shoe print was matched to the shoe of Livingstone, which led to the search of the hostels where they discovered the alleged stolen goods in Livingstone’s trunk.

The police officer then instructed the pupil to demonstrate how he entered the tuck shop during the break in. In the process, the pupil was allegedly assaulted by the police officers. The immediate family of Livingstone was not notified of his case. His mother was only notified after he was handed over to the police. There was no attempt by the Appellant to request for Livingstone to be taken through the school disciplinary procedures before he was taken to the police station. Neither did he report the incident to the school disciplinary committee he only did so after the pupil had gone missing.

On the 17th and 18th May 2023, the Appellant was arraigned before the Disciplinary Authority to answer to the charge as levelled. Paragraph 3 of the First Schedule (Section 2) of the Public Service Regulations, Statutory Instrument 1 of 2000 reads as follows:

“….failure to obey lawful instruction, including circulars, instructions or standing orders issued by the Commission.”

After a full inquiry, where evidence was received from 14 witnesses, the Appellant was found guilty on the charge by the Disciplinary Authority. A penalty of demotion to Deputy

Headmaster and transfer to Samaringa High School, with effect from the 2nd January 2024 was consequently imposed. Aggrieved by the decision of the Disciplinary Authority, the Appellant noted an appeal to this court in terms of section 51(1) Public Service Regulations which states that;

A member who is aggrieved by—

a determination by a disciplinary authority other than the Commission that he is guilty of misconduct in terms of section 46;

any penalty imposed upon him in terms of section 50 by a disciplinary authority other than the Commission; may, within twenty-one days from the date on which the disciplinary authority informs the member of the determination or penalty, either appeal against the determination or penalty to the Labour Relations Tribunal or request the Commission, in writing through the disciplinary authority, to review the determination or penalty in terms of this section.

The appeal was noted on the basis of the following grounds: -

“GROUNDS OF APPEAL

The Disciplinary Authority erred and grossly misdirected itself at law by making a finding that the appellant failed to executive his duties as expected when it is clear from the record that it was impracticable to appoint a disciplinary committee when the pupil was missing.

The Disciplinary Authority erred and grossly misdirected itself at law by finding the appellant guilty of violating Secretary’s Circular P35 which is not a regulation but a mere guideline of how the Education Act works with reference to indiscipline.

The Disciplinary Authority grossly erred in law and in fact by finding that the appellant was wrong when he reported the matter to the police, yet there was no suspect when the report was made to the police and the offence committed constituted a criminal offense."

POINTS IN LIMINE

The Respondent raised two points in limine through the Opposing Affidavit. Firstly, that the appeal was fatally defective due to the non-joinder of the Ministry of Primary and Secondary Education. It was argued that the Appellant had cited the Public Service Commission only as party to the proceedings and made a fatal mistake of omitting the Ministry of Primary and Secondary Education which has a direct and substantial interest in the matter.

The Respondent further contended that the determination sought to be appealed was not made by the Respondent that is before the court, but by the Ministry of Primary and Secondary Education. Whilst the Public Service Commission, as the employer, has locus standi and is typically cited as a party to proceedings involving labour matters for all government ministries, the issues raised in this matter remained under the jurisdiction of the relevant parent Ministry, which is directly responsible for the Appellant’s case. In this regard, the failure to include the relevant Ministry as a party to the proceedings effectively rendered the appeal a legal nullity. It was submitted that the Respondent, in isolation, cannot properly respond to a

matter in which it was not privy to.

. On the second point in limine, the Respondent alleged that there was a failure on Appellant’s part to exhaust available internal remedies. The matter was therefore improperly before the court. Reference was made to Section 51 of the Public Service Regulations, 2000 as amended which has been referred to supra. According to Respondent the provision clearly shows where a member is aggrieved by the determination and any penalty imposed upon him by a Disciplinary Authority other than the Commission, the member can refer a request to the Public Service Commission for a review of their case. In this case the Appellant instead of taking that approach had chosen to appeal directly to this Honourable Court and citing the very body he had no interaction with.

In response to the first point in limine, the Appellant submitted that the question as to whether the non-joinder of the Ministry of Primary and Secondary Education was fatal need not detain the Court and could easily be disposed of by reference to Rule 33 of the Labour Court Rules, 2017, which states that,

“(1) A Judge, prior to a hearing or in the course of a hearing matter, at his or her own instance or upon application by party, order that two or more applications, appeals or reviews

be consolidated or heard together and may give directions on all other matters related thereto so as to give effect to the order.

A person who has an interest in the determination of a matter by the Court may apply to be joined as a party to the proceedings.

Where in any matter before the Court a party wishes to join a third party who is not a party to the proceedings, he or she may apply to the Court to join that third party to the action.”

It was submitted that the provision was clear and therefore allowed of no ambiguity. The non-citation of the Ministry of Primary and Secondary Education was, in the circumstances, not fatal.

On the second point in limine the Appellant submitted that it is not a hard and fast rule that when a person is aggrieved by a decision of Disciplinary Authority, they must automatically request a review from the Public Service Commission. There is also the option to appeal directly to the Labour Court. This is clearly outlined in s 51 of Public Service Regulations Statutory Instrument Number 1 of 2000.

The points in limine having being raised through Respondents Opposing Affidavit were however not pursued in oral submissions. I therefore consider them as abandoned.

MERITS

APPELLANT SUBMISSIONS

On the merits, the Appellant submitted, under the first ground of appeal, that the Disciplinary Authority erred and grossly misdirected itself at law by making a finding that he failed to execute his duties as expected when it was clear that it was impracticable to appoint a disciplinary committee when the pupil was missing. In oral submissions, through his Counsel

he sought to extend the argument by stating that even if he had wanted to constitute the Disciplinary Committee the members present would not have constituted a quorum. This submission was clearly a new submission being made before the court. It was not supported by the record in the hearing a quo. This court sitting as an appellate court clearly would not be in a position to determine an issue not decided upon by the hearing a quo. The point ought

therefore to be simply disregarded.

The Appellant Counsel further submitted that the offence occurred during the weekend and the members of the Disciplinary Committee were not at school. The student’s file was also locked away. The secretary, bursar and the Deputy Headmaster were all away. The Appellant also contended that the delay on the day was also occasioned as he wanted the pupil to write the exam set on the 6th of December 2022. It was Counsel submission that the pupil had however gone missing before the Appellant could constitute the Disciplinary Committee. Thereafter his main focus was to look for the missing student .The Appellant further submitted that one of the witnesses, the District Schools Inspector, Mr Mutasa, in his evidence before the disciplinary committee supported his position that considering all that was happening on the day, he just did not have enough time to set up a Disciplinary Committee.

On the issue of violating the Secretary’s Circular P35, which is encompassed in the second ground of appeal, the Appellant submitted that the Secretary’s Circular P35 is not a regulation, neither is it an instruction, from which a charge could be derived as has happened in this case. His submission was Circular P35 is a mere guideline on how to implement the Education Act with reference to indiscipline in schools. The Appellant has also proceeded to define what constitutes a lawful instruction. His submission was that it relates to any direction, guidance, assistance or command that is not unlawful. In this light, Appellant contended that the Circular P35 was not a lawful instruction that he had to follow. It also did not provide any guidance as to what had to be done in the circumstances where a student who was a major was

suspected of theft. More importantly, the Circular P35 did not outline a specific period within which the Disciplinary Committee was supposed to be established in the event of an act of indiscipline during a weekend as had happened. The acting District Schools Inspector in his evidence had confirmed it would have been impossible for the Appellant to have sought

to implement circular p35 in the circumstances all he could do was to allow the police to take the pupil.

The Appellant has placed reliance on the case authority in Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 at 211 where GUBBAY JA (as he then was) had this to say:

“… wilful disobedience or wilful misconduct, the words in my view connote a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree, and not trivial- not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as to be likely to undermine the relationship between the employer and the employee, going to the very root of the contract of employment.”

In these circumstances, it was argued that the implementation of the circular P35 had some challenges when the pupil was already missing and the Circular itself was silent on what had to be done.

Pertaining to the 3rd ground of appeal, the Appellant argued that there was no suspect when the report was made to the police and the offence committed constituted a criminal offence. He argued that the pupil in question who was a suspect was a major, the matter was still under investigation. In addition to that, the police officers were doing their job since it was the second time there had been a break-in into the school premises. Even the security guards were suspects as well. The Appellant believes that he did not have the right to obstruct the police from carrying out their duty. He along with two others had accompanied the pupil to the police station for the police to open a docket and record statement from him. He had later driven

back to bail out the pupil. They drove back to the school. The students who had testified at the hearing confirmed that the pupil looked well upon his return to the hostel. He had shortly thereafter gone to sleep. Appellant also submitted that it was not practical for him to suspend the pupil as Zimbabwe Schools Examination Council examinations were due the very next day. He wanted the pupil to write exams. He had actually gone out the next morning to pick exams

when he was advised the pupil was missing. He had immediately reported the matter to the police. The Appellant contended what he had done was in the best interests of the pupil. He did what any reasonable and responsible person would do under the given circumstances of this

matter.

RESPONDENT SUBMISSIONS

On the first ground of appeal, the Respondent through Counsel contended, that, contrary

to submissions by the Appellant, the Disciplinary Committee members were present on the day. Reference was made to page 99 of the record. It was further submitted that the Appellant with 33 years of experience knew that he had to report to PED before taking any action against a pupil. He also knew he had to follow Circular P35 by appointing a Disciplinary Committee to take appropriate remedies provided for in the circular but he chose to report to the police. It was also argued that the Appellant ought to have followed the procedures provided for in the circular to deal with indiscipline at school level.

As the Headmaster he was supposed to ask the Disciplinary Committee to carry out investigations of the break in and make a decision on the indiscipline at the time the security guards suspected the student. The Disciplinary would have most likely suspended the pupil instead of him being referred to the police. He neglected to follow all the steps as set out in Circular P35 as well as the school code.

Counsel for the Respondent further submitted that the onus to prove the allegations on

a balance of probabilities was on the employer. In support of this assertion, he cited the case of Mugabe and Anor v Law Society of Zimbabwe 1994(2) ZLR 356 (SC). The submission was that Respondent had clearly met the threshold in this case. The first ground of appeal therefore had to fail.

On the second ground of appeal, the Respondent submitted that the Appellant was essentially challenging the validity of Government Policy Circular P35. It was clear however that Appellant had obviously utilised the same circular at some point during his 33 years of service. To challenge its validity at this stage was inconsistent. It amounted to him approbating and reprobating. Counsel also submitted that the Public Service Commission has several statutes that govern its operations. These are normally issued as Policy Directives/Circulars which members are expected to comply with. Government policies are lawful instructions which must be followed to promote efficiency and standard operating procedures. Counsel referred to John Grogan in his book Workplace Law at page 35 where the author outlined the checklist for a valid rule in the workplace. Based on that authority it was Counsel submission that what was of essence was whether the employer had authority to place the rule, was the rule necessary for the efficient running of the department, was the rule known to the employee concerned, had the rule been consistently applied in other cases etc. Counsel submission was that Circular P35 had been in existence since 1999. It was issued by the Secretary of the Ministry who clearly had authority. There was no doubt Appellant knew of its existence. The reason for its introduction was to streamline the disciplinary procedures at schools to ensure effective, orderly and safe conduct of such procedures. The Circular being therefore a lawful instruction had to be obeyed. A failure to obey such therefore constituted wilful disobedience to a lawful instruction warranting even discharge from service. The Appellant had however received a lesser penalty. Counsel dismissed the contention by the

Appellant Counsel that Circular P35 only provided for penalties and not the procedures in the case of indiscipline by students. He stated that the Circular actually provided for the setting up of Disciplinary Committee, investigation of cases of indiscipline by students, penalties that could be imposed including suspension or even dismissal of the pupil from the school. The

Respondent position was that the second ground also had to fail.

On the third ground of appeal it was Respondent submission the Appellant knew he had to follow Circular P35 by appointing a Disciplinary Committee to take appropriate remedies as provided for in the circular he however chose to report the matter to the police. It was also argued that the Appellant ought to have followed the procedures provided for in the circular to deal with indiscipline at school level.

The Respondent Counsel also argued that the Appellant knew that the pupil Livingstone was the suspect even before reporting the matter to the police. He had been advised by security that shoe print found was going to the male student's hostels. He also knew the pupil to have been previously involved in a burglary incident at his last school. The Appellant had led the police to arrest the pupil. The Appellant should have exhausted internal remedies first before roping in the police. The Appellant had the right to stop the police if he so wished as he was the complainant. Even after reporting the matter to the police, he could simply have told police that there was a P35 Circular that provided for handling of indiscipline matters at school and also that he needed to engage his superiors before handing over the pupil to the police. Instead the pupil was assaulted by police in his presence according to the evidence of two witnesses. He also escorted the pupil to the police station where he left him at the mercy of the police from 12pm to 5pm.The Appellant up to that time had not informed the pupil’s guardian. It was Respondent further contention that the evidence by the two police officers who had agreed to beat up the pupil remained unchallenged by the Appellant as at the end of

disciplinary proceedings. The evidence had also not been challenged before this court. The Respondent prayer was for ground number 3 to be also dismissed for lack of merit.

On the issue of penalty Counsel submitted that it is a trite position at law that an appellate court, such as this court, may not lightly interfere with the exercise of discretion by a trial court on the issue of penalty. The court can only interfere in the instance of gross error in the exercise of discretion by the trial court. Reference was made to Barros vs Chimpondah 1999 (1) ZLR 58(S). The Respondent prayer was, in the absence of any error established before

this court, that the penalty imposed should be retained and the appeal be dismissed with costs.

EVALUATION

Under the first ground of appeal the Appellant contends that the Disciplinary Authority erred and grossly misdirected itself at law by finding that he had failed to execute his duties as expected when it was clear from the record it was impracticable to appoint a Disciplinary Committee. The Appellant further argues that it was impractical to form a Disciplinary Committee due to the absence of the disciplinary committee members, the deputy headmaster, the school secretary. Additionally the pupil’s file was locked away. The Appellant has further argued that the Circular P35, which provided guidance on handling indiscipline, does not specify a time frame for setting up a Disciplinary Committee, and that he acted responsibly by reporting the incident to the police, especially given the nature of the alleged offence.

This position has been challenged by the Respondent. As correctly contended by the Respondent the record shows that there were indeed members of the disciplinary committee available on the day. The record shows, on page 99 to which the court was referred by Respondent, that, the following findings were made by the disciplinary committee;

“24 On 5 December, 2021 members of the disciplinary committee namely, Mrs Nyahanana, Mr Nyamombe and Mrs Masiyakurima were present. The 3 could have advised to look into Livingstone’s case.”

It is clear therefore that with three members present, if the appellant had taken the option to alert them, they could have initiated an investigation immediately given the seriousness of the allegations. They would also have taken a position in regards the fate of the pupil. The procedures set out under Circular P35 would have resulted in the pupil being suspended rather than being handed over to the police. The members would most probably have taken the initiative to advise the pupil’s guardian. There is no doubt that the failure to instigate the P35 procedures led the pupil to be placed in police custody where, as the evidence of the two police officers showed, he was subjected to physical and possibly mental torture. There is no doubt that the Appellant did fail to follow the Circular P35 procedures in this case.

The Respondent also correctly argued that the appellant was negligent in not following Circular P35, which lays out internal procedures for handling such matters. In ZB Bank v Maria Masunda SC 48/16, the court said,

“the respondent's failure to file medical aid claims, a key part of her duties, is considered serious misconduct. When an employee neglects or refuses to perform essential tasks, it undermines the employer's interests and breaches the core of the employment contract.”

The appellant in this case did not fulfil his duties as expected of him by the circular. The failure to follow established internal procedures, especially when a guideline like Circular P35 exists, raises questions about the appellant's adherence to duty. The law generally requires that internal remedies to be exhausted before resorting to external measures unless there are compelling reasons to do otherwise. The court in this case agrees with Respondent’s argument that the Appellant should have followed the internal procedures before involving the police especially in this situation where the offence was related to school discipline. The appellant

with 33 years of being in service was no doubt familiar with the procedures outlined in the

circular, there was no valid excuse for bypassing them.

The appellant has further argued that the circumstances of the case (the pupil being missing, key staff members being unavailable, and the impending exams) made it impractical to form a disciplinary committee in time. The court notes that the reasons tendered are flimsy. There was clearly a period in which the Appellant could have engaged the committee members or even call PED as suggested by a witness. No reason was tendered for the failure to so act on the day of the incident. It also must be noted that the pupil only disappeared the next day. It is also clear the circular’s purpose was to ensure a structured response to indiscipline, and the Appellant should have sought alternative solutions, such as engaging with available staff or consulting with superiors, before involving the police.

Under the second ground of appeal the appellant is challenging the Circular P35 on the basis that it is not a law/regulation neither is it a lawful instruction that he ought to have complied with. He contends that it is only a policy direction from which a charge could not have been derived therefrom. As contended by the respondent the appellant had 33 years of service in the public service at the time of the act of misconduct. He clearly at some stage in those 33 years had applied the Circular. He clearly cannot seek to challenge its validity at this stage. It is also clear he does not challenge its existence, its purpose and that it has been utilised in the past. The Circular as contended by the Respondent in any event is a rule/policy by the employer which every member is required to comply with. The Circular was not placed before me. It was however not argued by the Appellant that it was not lawfully issued by the Secretary of Education. The charge levelled against the Appellant however clearly shows ‘Circulars’ issued by the employer carry force of law to the extent that a failure to comply with them amounts to an act of misconduct. The argument by the Appellant cannot stand therefore. The second ground of appeal clearly must fail.

In his third ground of appeal, Appellant contends that the Disciplinary Authority grossly erred in law and fact by finding that he should not have reported the matter to the police yet there was no material suspect at the time of the report of crime to the police. The Appellant has also defended his actions on the basis that the offense committed was criminal in nature, the pupil was a major and the police were already involved. As submitted by the

Respondent the Appellant should still have exhausted internal remedies before engaging the police. No cogent reason was placed before the Disciplinary Authority for his failure to utilise those remedies. It is also apparent that Appellant knew the suspect was a student as he had been advised by security details that they had tracked the footprint to the hostel. He however opted to call the police. The Disciplinary Authority did not err and misdirect itself when it found that he should not have reported the matter to the police. On the issue of penalty as correctly contended by the Respondent the issue of penalty lies in the discretion of the employer. It clearly cannot be said that the employer in this case exercised its discretion unreasonably. There is no merit in the Appellant‘s submission that the penalty was

excessive.

DISPOSITION

The appeal clearly lacks merit, it is accordingly dismissed with costs.